6 N.Y.S. 769 | N.Y. Sur. Ct. | 1889
Questions have arisen upon this accounting as to the ownership of proceeds of real estate which was sold by the executors. The determination of these questions involves a construction of the will of the decedent, dated September 1, 1873, and admitted to probate in this court on the 25th day of November, 1873. The important clauses of the will are the following: “Second. After the decease of my said wife, and at the time of the division of my property, as hereinafter mentioned, I give and bequeath to my grandson Truman A. Hedger, of the state of Michigan, the sum of three hundred dollars. Third. At the time of the division of my estate as aforesaid I give and bequeatli to my son Charles H. Hedger the sum of one hundred dollars, he having already bad during my life-time his proper share of my estate within this amount. Fourth. I give, devise, and bequeath all of my real and personal estate of every kind and nature soever and wherever situated, except the above bequests to my grandson Truman A. Hedger and my son Charles H. Hedger, to my sons Thomas I). Hedger, William A. Hedger, my daughters Harriet Cogswell, widow of Oscar Cogswell, Mary Bently, widow of Stephen L. Bently, and Margaret Maul, wife of George H. Maul, and my grandson William 0. Cogswell, to be divided equally between them, share and share alike. Such devises and bequests are to take effect, and such division of my estate is to be had, after the decease of my said wife, Jerusha Ann Hedger. Fifth. I hereby authorize and empower my executors, hereinafter named, to sell and convey my real estate, after the death of my said wife, as aforesaid, and to give, execute, and deliver good and sufficient deed or deeds' of conveyance therefor, dividing the proceeds thereof as above directed, together with the proceeds of my personal property. ” In the first clause of the will the use of the real and personal property is given to the testator’s widow for life, with the direction that the homestead remain the home of the family during her life-time. She died May 27, 1888. Harriet Cogswell, named in the will, has since its probate married David R. Hamilton, and is the contestant in this proceeding. William O. Cogswell, who was her son, died in 1879, intestate, leaving no wife or child. Charles H. Hedger died in 1882, leaving a widow and three children. Thomas D. Hedger, a son of the testator, died after the death of his father, and before the decease of his mother. The personal prop
It is claimed by the contestant that the legacies or devises given by the fourth clause of the will vested upon the death of the testator; while the executors contend that they did not vest until the death of the testator’s widow; and, in consequence, that the shares of the persons who died in the interval have lapsed. The executors also claim that the legacies given in the second and third clauses of the will were liens upon the real estate of which the testator died seised. The legacies of Truman A. Hedger and Charles H. Hedger, in the second and third clauses of the will, are directed to be paid after the decease of the testator’s wife, and at the time of the division of his estate. The reason that Charles is to receive only $100 is stated in the will to be that he had already had his proper share of the estate, except that amount. In referring to the division of the estate, the testator treats his real and personal property alike. The disposition of the remainder of the property is made without distinction between the real and personal; and, for the purpose of a division, a power of sale of the real estate is given the executors. These legacies are excepted from the general remainder, indicating that it was intended they should be paid before the division of the residue of the real and personal property. No devise of real estate is made, except as a part of the residuum. The personal property left by the decedent was small in amount, and it must have been understood by him that the personalty was liable to be consumed in the payment of the debts and funeral expenses, and in the use thereof by his wife. The facts make a case requiring the real estate to be charged with these legacies. Briggs v. Carroll, 3 N. Y. Supp. 686; McCorn v. McCorn, 100 N. Y. 511, 3 N. E. Rep. 480; Scott v. Stebbins. 91 N. Y. 605; Hoyt v. Hoyt, 85 N. Y. 142; Brill v. Wright, 112 N. Y. 129, 19 N. E. Rep. 628.
A contention arises as to the time of the vesting of the legacies and devises contained in the second, third, and fourth clauses of the will. There being no personal property applicable to the legacies, they may be treated as payable exclusively from the avails of the real estate. By the fifth clause of the will the executors are directed to sell the real estate after the death of the testator’s wife, and to divide the proceeds as directed. From this provision, and the direction that such devises and bequests are to take effect and such division be had after the decease of said wife, contained in the fourth clause of the will, the counsel for the executors urged that the legacies and devises contained in the second, third, and fourth clauses of the will did not vest until after the death of the widow, and that, Thomas D. Hedger, William O. Cogswell, and Charles H. Hedger having died intermediate t‘he death of the testator and his widow, the legacies or devises to them lapsed. The rule upon which this view of the case is based is that, where there is no gift but by a direction to executors or trustees to pay or divide, and to pay at a future time, the vesting in the beneficiary will not take place until that time arrives. The ease of Warner v. Durant, 76 N. Y. 136, is cited as an authority. The case of Vincent v. Newhouse, 83 N. Y. 505, is also cited as sustaining the position that, where an executor is empowered to sell lands and divide the proceeds, the interests of the legatees do not vest until the time of the division. The court in that case quotes the language of the master of the rolls in Hoghton v. Whitgreave, 1 Jac. & W. 146, which is: “Not only was there no bequest before the widow’s death, but the subject-matter did not till then exist in the shape and form in which it is given.” This authority has been frequently quoted by our highest court, without explanation. As the proposition referred to, if taken in the abstract, is misleading, it may be useful to call attention to some of these cases in connection with other decisions of the same court, bearing upon the question under consideration. The case of Hoghton v. Whitgreave was one
There are numerous cases of legacies to certain persons or their survivors or to classes of persons in which an uncertainty existed as to whether the giver had in view a survivorship or class of persons in being at the time of his death or at the time of the division of his property, or where a condition precedent has been attached to a gift, in which the principle here invoked has been resorted to. 1 am not able to find any case in which the rule laid down in Warner v. Durant has been applied where the gift of property, after an intermediate estate, has been conditional and certain as to the objects of the bounty, and directly ascertainable as to quantity; whereas the supreme court and the court of last resort in this state have held that, where the intention of the testator is definite as to the beneficiaries under a will, and as to their shares of the property, a gift by a direction to executors to divide at a future time will vest in the beneficiary before the time of division arrives. Williams v. Conrad, 30 Barb. 524; Ross v. Roberts, 2 Hun, 90. The last-named case was affirmed by the court of appeals. 63 N. Y. 652. Here a power of sale was given executors, to be executed upon the death of the testator’s wife, when the proceeds were to be divided among his legatees. It was held that the husband of the legatee, who died after the testator and before the widow, was entitled, on the death of the widow, to the legacy bequeathed to his wife, for the reason that the legacies became vested interests upon the death of the testator. This ease is parallel with the case at bar, except for the expression in the latter, “such devises and bequests are to take effect, and such division of my estate is to be had, after the decease of my said wife;” and the question arises whether the testator intended anything more by the words “to take effect” than that the legacies were to be paid at that time. Unless the intention is unequivocally expressed to the contrary, it is the duty of the court to so interpret the expressions in a will as to favor the vesting of estates, rather than the opposite. The legatees and devisees who would have had an immediate right to the possession of the property upon the ceasing of the precedent estate were all in being, and their shares ascertainable, at the'time of the testator’s death; consequently their interests were vested. Moore v. Littel, 41 N. Y. 76; Hennessy v. Patterson, 85 N. Y. 91. It was held by Surrogate Bradford, in the case of Van Wyck v. Bloodgood, 1 Bradf. Sur. 154, that the point which determines the vesting or lapsing of a legacy given in future is not whether time is annexed to the gift, but whether time is annexed to the substance of the gift. The mere circumstance that the gift is future does not make time of the substance of a gift. That is to be determined from theintention of the testator, as gathered from the whole will. By the substance of a. gift is meant its comprehensive summary. To say that time is of the substance of the gift is to say that the gift shall not be effectual unless the legatee shall be living, or some other condition precedent be fulfilled at the time indicated. The postponing of the possession of a legacy imposes no condition as to its vesting. If futurity is annexed to the substance of the gift, the vesting is suspended, but, if it appear to relate to the time of payment only, the legacy vests instanter. Gilman v. Reddington, 24 N. Y. 9. In the case of Everiti v. Everitt, 29 N. Y. 75, Chief Justice Denio, in making the foregoing citation, says: “The leading inquiry upon which the question of vesting or not vesting turns is whether the gift is immediate, and the time of payment or of enjoyment only postponed, or is future and contingent, depending upon the beneficiary arriving of age, or surviving some other person, or the like.” In the case at bar the testator has given his property to his children and grandchildren, nominatim, in shares which are ascertainable from the terms of the will; and I think it was his intention that their in